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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-09-04 Daily Xml
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CRIMINAL LAW (SENTENCING) (GUILTY PLEAS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. R.B. SUCH (Fisher) (12:40): The criminal law sentencing bill that we are considering is a very important piece of legislation. I would express my support on the basis of caution because I think the critical question is: will it improve our system of justice. It is not: will it save the taxpayer or the government money? We have another system which basically was brought in as a money saver, and that is one with which I am very familiar, the expiation system. It saves the government a lot of money and brings in a lot of income but it has questions that arise in relation to whether it is necessarily fair, just and so on, but that debate is for another day. The same principles should apply in this case: does it enhance our system of justice? I think there is a case for reducing the penalty that is imposed, whether it be custodial or otherwise, but, as I said, justice should be served.

What needs to underlie all these considerations, particularly in regard to, obviously, incarceration, is the current and ongoing practice of increasingly incarcerating offenders. There are several aspects to this. The cost is enormous (about $100,000 per annum per prisoner, roughly). There is the question of whether it works and is effective. It is obviously not a deterrent because we are having to build more and more accommodation for prisoners so, overall, the system is not working as a deterrent.

I accept there are some people who you have to lock up for the sake of the wider community, but I think some issues arise that relate to this bill and one of them is: do we allow judges and magistrates enough flexibility in regard to sentencing options? I think that is an issue that needs to be addressed. Victoria recently shut down home detention because they said it was not effective. We still have it here. That is not the only alternative to being put in prison, but there are other options.

I was in Western Australia recently and met with some of their members of parliament. They have what, on the evidence, appears to be a very effective way of dealing with sex offenders using what is called a libido-reducing program. The person who has been given a sentence has to agree to participate and they have regular blood tests. It means that many of those sex offenders do not have to be incarcerated. The cost saving to the community is enormous, as long as those people do not pose a risk, and it is a carefully monitored program. That should be on the agenda here, if it is not happening, and I am not aware that it is to any large extent, but it should certainly be considered.

In terms of giving a discount for a penalty, I think there should be something that says that if the person sentenced, for example, a sex offender, agrees to being part of that libido-reducing program, that is a possibility. I think it should go beyond that. Do you require them to commit, for example, to participating in a literacy and numeracy program or treatment for mental illness? You would have to enforce these agreements, obviously. It could include treatment for some psychological disorders. Some of them we know are not easily treated and some of the personality disorders are virtually impossible to treat, but I think if you are going to think about discounts for offenders you could have a package that offers (and it needs some teeth) that, if you enter into an agreement to undertake certain things, that could be considered in the context of your overall sentence.

I believe that our court system can be reformed in many ways without fundamentally harming the principle on which it is based and on which it has been established over a long period of time. We need to do that, not simply because of the number of people who are ending up in prison. If you look at it, the United States has a quarter of the world's prison population. Obviously it does not work there, either—many of them happen to have a dark skin and that might tell you something about the system in the United States.

We have to be careful, and I think that this government and others have fallen into the trap of not allowing courts and the parole system to do their job. I do not agree with Executive Council playing the role of a second court. If someone is given a sentence and they have the punishment and the Parole Board believes that they are appropriate for release—whether it be, as I say, in the context of, say, a Western Australian-type sex offender program—then I think that should be allowed to happen.

I do not agree with what is happening and what has happened for many years, that is, playing politics with sentences so that you get some murderers (a terrible crime), for example, who get treated differently even though they have actually served their sentence. I can understand someone who is a victim of a serious crime—or their family. I would have bloodlust, too, I would want to see that person strung up, but we do not live in that sort of society. We do not want the lynch mob. Sadly, some sections of the media cultivate this notion of the lynch mob and the Wild West.

The judges and the magistrates overall are smart people; they are not your everyday citizen. They are very capable in making decisions. They should be allowed to make the decision, and their decisions should be allowed to flow through without being compromised in the end by Executive Council. I think of one case which happened before I was born but it occurred in the area where I grew up. A character with a surname of Box was tried and found guilty of murder. The judge and the jury recommended mercy. The Executive Council, headed by Tom Playford, did not agree with that, and this character was executed—hanged—at the Adelaide Gaol.

Now, in talking to people in recent times they say that we would now describe that character as having an intellectual disability. He was described to me as being 'simple'; that was the sort of language of the day. It just highlights to me (and I have always felt strongly about this) that I do not think that politicians should play the role of courts and mess around with sentences and the Parole Board decisions. I think that as part of an overall package (and I know that this is focusing particularly on the sentencing aspect) let the courts make the decision and let the Parole Board take into account the circumstances. If you are not going to do that, then get rid of the judges and magistrates and have a computer where you press a button—'murder, penalty X'. That is what you have judges and magistrates for, so that they can listen to the evidence, look at the facts and make some considered judgement.

I support this bill overall. I hope that it works. I support prisoners—through their behaviour, through rehabilitation in prison, learning English, improving their mathematical skills—being able to get a discount on the time spent in prison. I support that also. I think that what we have in recent times is a sort of draconian approach. It is almost going back to the convict days and the days of cutting off people's hands.

I was reading about what happened to Cornelisz who was on the Batavia, captained by Pelsaert. Before they hanged Cornelisz, after he had done some terrible things, they cut off his hand (one report said two hands), but hopefully we have moved beyond that sort of approach where we can have the most draconian punishments. It does not stop people doing things because often such people are not of a rational frame of mind. You can have as many prisons as you like, you can cut off people's hands or string them up, but that is not the answer. The answer is the way people are socialised in the community, and I have advocated this for a long time.

I support this bill but with a cautious approach. We cannot keep spending so much money on law and order as we have a big commitment as a community to look after the health of our people. I obviously do not condone people's criminal behaviour, but let us see if we can create a system not just in the courts (the courts are dealing with the consequences) and take a more fundamental approach.

I will conclude on this note: when in Western Australia talking to people they asked where I was from and I said South Australia. The point made to me, not by one person but by several, was the legacy of Don Dunstan, and they said that was the greatest thing they knew about South Australia. Don Dunstan lived in a different era, but he was a great reformer in terms of the law. We need to see that happen in South Australia. It is now in a different context, but we should look at some of the great lawmakers of the past, some of the smart people who have been in here in the past—former attorneys-general—and we should try to improve the system, and hopefully this bill we are debating today will help do that.

Dr McFETRIDGE (Morphett) (12:52): The Liberal Party is not opposing this bill in this place, but I think there are some changes that will improve the legislation, the Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012, which will be discussed between this and the other place. The old saying, that 'if you can't do the time, don't do the crime', is something we hear all the time. It is quite right, but I would prefer if people did not do the crime in the first place.

This bill offers an incentive for people to plead guilty early so that the courts system can be freed up and the whole legal system can proceed at, hopefully, a slightly quicker pace than it does currently, because there are some very significant delays in the court systems. One part about which I am particularly concerned as shadow minister for corrections and police is the number of people on remand. In South Australia we have one of the highest remand rates.

A report done for the department of corrections in 2010, 'An overview of the South Australian remand prisoner population 2010', talks about the fact that for over 17 years the South Australian custodial remand rate has been consistently higher than the national rate. This gap has widened in recent years, fundamentally meaning that remand in custody is increasing faster in South Australia than the national average. The average time on remand for all prisoners discharged in 2009-10 was 66.4 days. That said, over 40 per cent of prisoners are on remand for less than 20 days. Being on remand is a necessary part of the process.

However, I know that the number of prisoners on remand for very short periods (less than 20 days, as it says in the report) causes considerable difficulties with their lives—with everything from Centrelink to their employment. There is an opportunity to look at the remand system in South Australia, not to make it easier or to go soft on crime—far from it—but to make sure the individuals who are, to all intents and purposes, still innocent or have not been found guilty of a crime are able to take the benefit of our Westminster system, where we consider people to be innocent until proven guilty. We should have an opportunity to ensure that those people have the opportunity to make sure that their lives are not completely disrupted if at all possible. This bill today offers another way of allowing people to get their lives back after serious crimes if they plead guilty. Up to 40 per cent is offered under this legislation; currently it is 33 per cent. Depending on the circumstances it may be a minimum of 10 per cent under this legislation.

I think the percentage of the sentence which is reduced has to be considered by the judge, because there is always a maximum sentence. In many cases we do not see that maximum sentence being given to the criminal, so 40 per cent of what sentence is being reduced? To that end, it is interesting to see section 10 of the bill, where there are sentencing considerations. Under section 10(2)(a) there is the need to protect the safety of the community, under section 10(2)(c) it is where there has been sexual exploitation of a child, and in section 10(2)(d) it is in the case of an offence involving arson or causing bushfire.

In those particular circumstances the ability to obtain a reduction in a sentence by a guilty plea is significantly reduced or, in most cases, eliminated altogether. If we can make sure that people are not getting away with the crime or getting a soft approach to sentencing in the legal system, that is a good thing. However, a 40 per cent maximum does seem out of step, with Western Australia at 25 per cent and in many other places around 30 or 33 per cent being considered adequate. That is the current situation.

I encourage people, when they look at the sentences given and then consider any discounts for guilty pleas, to go and read the sentencing considerations. I know that there is criticism of so-called 'light' sentencing in South Australia by our judges, but when you read the sentencing considerations, the remarks by the judge, you see that the sentence is adequate. If we are offering extra inducements here we want to be very careful about it, so the Liberal Party is still considering this piece of legislation. We need to make sure that everyone, both victims and perpetrators, are treated as fairly as we would like them to be in 2012.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (12:57): I thank everyone for their contribution. Very briefly, I think the member for Morphett's contribution was, with respect, very well considered. I think there is some work to be done in respect of remand somewhere, although that is not my portfolio. I do think it is a point we should look at at some—

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, but he makes some good points about that. I got a bit nervous when he talked about 'improvement'; that is something that the Hon. Stephen Wade constantly describes his behaviour as engendering, and that does give me some cause for alarm.

I will just mention a couple of things that were referred to by the member for Bragg. First, regarding the percentage and the statistics, I understand that the current available statistics are, in fact, the ones in this second reading speech. I am advised that the 2011-12 figures are only draft, so they are not final. That is what I am told.

On the question of discount and whether it is 40 per cent or 33⅓ per cent, whatever the case may be, these are maximum numbers. I would be happy if the ultimate bottom end were zero, but I have attempted to accommodate some of the criticism that was made of the early versions of the bill, and there we go. Bear in mind that the 40 percent maximum can apply only to those people whose guilty plea arrives within four weeks of the first appearance. That is even before there has been full disclosure, so it will be a relatively small pool of people who would even be within cooee of that opportunity.

The other thing I want to say is that, very importantly, this is meant to be taken in conjunction with a whole range of measures. This does not fix everything by itself. It is like a Rubik's cube, as I think I might have said before. This is one element of it: it is not the whole thing. This will not solve every problem.

The last point I want to make is that, as I have said so many times in this place, it is disappointing that we do not get to see the amendments in this chamber, because it means I am denied the opportunity of actually exploring those points in this chamber.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Progress reported; committee to sit again.


[Sitting suspended from 13:01 to 14:00]


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